This civil revision is directed against the judgment and decree dated 6th March, 2000, passed by the Additional District Judge, Rawalpindi, whereby, the judgment and decree dated 31.7.1994 awarded by the Civil Judge, Rawalpindi was affirmed.
2. The petitioners filed a suit for declaration that they are collaterals of Sikandar Khan son of Ali Bahadur who died issueless. Thus they are owners of 3/4th share of estate left by him and cancellation of mutation and transfer deeds were also sought. A decree for separate possession through partition and by way of consequential relief decree for permanent injunction was also sought.
3.The case set up by the plaintiffs-petitioners was that Sikandar Khan son of Ali Bahadur was owner in possession in respect of land bearing Khasra No, 200 measuring 5 Kanals 1 Marla, Khasra No, 197 measuring 30 Kanals 10 Marlas, Khasra No, 203 measuring 6 Marlas, Khasra No, 202 measuring 1 Kanal 11 Marlas, Khasra No, 205 Measuring 4 Kanals 9 Marlas, Khasra No, 225 measuring 13 Marlas, Khasra No, 226 measuring 18 Marlas, Khasra No, 227 measuring 6 Kanals 8 Malras and Khasra No, 222 measuring 2 Kanals 3 Marlas totalling 52 Kanals 15 Marlas and House Nos, 51, 52, 53, 54 and 55 situated in Revenue Estate of Village Topi Tehsil and District Rawalpindi and that the said Sikandar Khan died issue-less leaving behind Mst. Naiko. It was claimed that Jahandad and Muhammad Khan were the collaterals of aforesaid Sikandar Khan in a manner that Sikandar Khan was from the progeny of Habibullah whereas Muhammad Khan and Jahandad were both from the progeny of Haji sons of Abdullah. Thus they descended from a common ancesstor. It was further averred that in the settlement of 1905 and 1906 in the Pedigri table name of Muhammad Khan was omitted and only the name of his real brother Jehandad was mentioned. This error led to a wrong entry in the revenue record whereby the name of Muhammad Khan was omitted and the entire estate of his father Haider Ali was mutated in favour of Jahandad. Further it was narrated that a suit for declaration was filed by Muhammad Khan and during the pendency of that suit Jahandad died. Jahandad was also stated to be issue-less, therefore, his estate to the extent of 3/4th share was inherited by the predecessor-in-interest of the plaintiff and to the extent of 1/4th share by his widow namely Mst. Channan Bibi. Later Mst. Channan Bibi accepted the parentage of Muhammad Khan the predecessor-in-interest of the plaintiff. Thus it was pleaded that it was proved in earlier litigations that Muhammad Khan and Jahandad were the real brothers and as they were from the progeny of Abdullah, therefore, they were collaterals of Sikandar Khan deceased and were entitled to inherit 3/4th share out of his estate.
4. The defendants-respondents contended the suit and inter-alia raised a number of pleas. It was averred that the suit is barred by limitation, the plaintiff has no cause of action or any locus-standi to file the suit. On merits it was asserted that Sikandar Khan son of Ali Bahadur was merely an occupancy tenant of the land. On his death, the occupancy rights devolved upon Mst. Naiko, his widow. Later, Mst. Naiko deposited compensation in accordance with the Punjab Tenancy Act and acquired the proprietary rights in respect of the land in question and became full owner. It was pointed out that Sikandar died in the year 1946 and the predecessor-in-interest of the plaintiff Muhammad Khan died in the year 1981. It was submitted in their written statement that during the long period of 35 years, Muhammad Khan did not challenge the ownership rights of Mst. Naiko or gift-deed dated 8.2.1966 executed by Mst. Naiko and registered in favour of Defendant No, 1.
Pedigree table as given in the plaint was also controverted and it was pleaded that Jehandad and Muhammad Khan were not the collaterals of Sikandar. The averment that in the settlement record of 1905-6 the name of Muhammad Khan was omitted, was also denied and it was stated that Ali Haider was not the grand-father of the plaintiff. It was also stated that Muhammad Khan, the predecessor-in-interest of the plaintiff was not the son of Ali Haider. That is why he was precluded from the inheritence of Ali Haider. It was also a fact that Muhammad Khan filed a suit against Jehandad and claimed himself to be a son of Ali Haider. Jehandad contested and refuted the said claim. Muhammad Khan failed to substantiate his claim and consequently his suit was dismissed.
In the meantime, Jehandad died issue-less and survived by Mst. Channo, his widow. It was also stated that Mst. Naiko after acquiring the proprietary rights transferred her rights to Defendant No, 1 through a registered gift deed dated 8.2.1966. Jehandad son of Ali Haider challenged the said gift deed through a civil suit i,e, Civil Suit No, 72 of 1966 which was ultimately dismissed on 31.7.1974.
Another suit was filed by Suba and Qalandar whereby, gift deed dated 8.2.1966 was put to challenge. This suit was also dismissed. It was further pleaded in the written statement that the plaintiff fully knew about the gift deed dated 8.2.1966. He appeared as a witness in the said suit, which was dismissed. Therefore, the averment that the plaintiff came to know about the gift deed three months prior to the filing of the present suit was controverted.
5. From the pleadings of the parties the trial Court settled issues in the following terms on 7.5.1991:--
1. Whether the suit is barred by time? OPD
2. Whether the plaintiffs have got no cause of action? OPD
3. Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD
4. Whether the plaintiffs have not come in the Court with clean hands? OPD
5. Whether the valuation of the suit for the purposes of Court fee is incorrect, if so, what is the correct valuation ? OPD
6. Whether the defendants are entitled to special costs under Section 35-A of CPC? OPD
7. Whether the plaintiffs are collaterals of Sikandar Khan and entitled to 3/4th shares in the suit property and the transfer of suit property in favour of Mst. Naiko widow of Sikandar Khan and subsequent transfers between the parties are illegal inoperative, void, malafide and ineffective upon the rights of the plaintiffs? OPP
8. Whether the suit property is joint between the parties and the plaintiffs are entitled to separate possession of 3/4th shares through partition? OPP 9.Whether the plaintiffs are entitled to a decree for declaration, cancellation of deeds and permanent injunction as prayed for? OPP An additional issue was also framed on 17.7.1994 which reads as under:-- 9-A. Whether the suit is hit under order 9 Rule 9 and Section 11 of CPC ? OPD.
10.Relief.
6.Both the parties led their evidence in support of their respective pleas. From the side of the plaintiff, Petitioner No, 1 appeared as PW-1 and brought on the record documentary evidence which is described here under: S.No,Document Exhibit. Annexure
1. Judgment of the District Judge in case titled "Muhammad Khan vs. Mst. Channo etc. dated 10.11.1979.Exh. '3' "E"
2. Pedigree Table of 1860 Exh. P-4 "F"
3. Pedigree Table of 1905, 1906.Exh. P-5. "G"
4. Pedigree Table of 1950, 1951.Exh. P-6. "H"
5. Naqsha Alaf Dehwar. Exh. P-7. "I"
6. Naqash Paidaish Larka year 1898Exh. P-8. "J"
7. Nagai Paidaish year 1895Exh. P-9 "K"
8. Copy of Mutation No, 519Exh. P-10. "L"
9. Copy of Mutation No,520Exh. P-11. "M"
10. Copy of Settlement Record 1955-56Exh. P-12. "N"
11. Copy of Jamabandi 1946-47Exh. P-13 "O"
12. Copy of Jamabandi 1946-47Exh. P-14. "P"
13. Copy of Jamabandi 1962-63Exh. P-15 "Q"
14. Copy of Mutation No, 343Exh. P-16 "R"
15. Pedigree Table of 1990-91.Exh. P-17. "S"
16. Judgment of District Judge dated 30.6.1994.Exh. P-18. "S/1"
17. Nikah Nama Exh. P-21 "S/2"
18. Discharge Certificate Exh. P-22 "S/3"
19. Discharge certificate. Exh. P-23. "S/4"
20. Telegram. Exh. P-24 "S/5"
7. On the other hand, Defendant No, 1 appeared as DW-1 and brought on the record the following documentary evidence:- Sr.No,Documents. Exhibit Annexure.
1. Mutation No, 584 Exh. D-1 "I"
2. Mutation No, 585. Exh. D-2 "U"
3. Mutation No, 294, dated 16.6.1902.Exh. D-3 "V"
4. Copy of Case No, 470. Exh. D-4 "W"
5. Copy of Case No, 72 Exh. D-5 "X"
6. Copy of Gift Deed. Exh. D-6 "Y'
7. Copy of Case No, 322. Exh. D-7 "Z"
8. Copy of Appeal No, 96 Exh. D-8 "AA"
9. Copy of Settlement Record, 1905-06Exh. D-9 "BB"
10 Copy of Mutation No, 519Exh. D-10 "CC"
11. Copy of Mutation No, 614Exh. D-11 "DD"
12. Copy of Mutation No, 615Exh. D-12 "EE"
13. Copy of pedigree Table of Sikandar.Exh. D-13 "Fr
14. Copy of Mutation No, 181Exh. D-14 "GG"
15. Copy of Mutation No, 19Exh. D-15 "HIT
16. Copy of statement of Muhammad Ashraf, dated 27.6.1994Exh. D-16 "II"
17. Copy of Mutation No, 269Exh. D-17 "JJ"
18. Copy of Mutation No, 280Exh. D-18 "KK"
19. Copy of entry in the Cantonment Record of House Nos, 51 to 55.Exh. D-19 "LL"
8. After completion of the evidence and hearing the parties, the trial Court decided Issues Nos, 1 to 8, 10 and 11 against the plaintiff/petitioner and dismissed the suit. An appeal was preferred by the petitioner which was decided by the Additional District Judge, Rawalpindi vide his impugned judgment and decree, the appeal was also dismissed.
9. Through the present revision petition, the judgments and decrees of the two Courts below are assailed by the petitioner.
10.The petitioner's learned counsel argued that the decision of the two Courts below on Issue No, 1 was erroneous and based on misapplication of law. It was argued that the suit filed by the petitioner was relating to inheritance, as such, no limitation was provided, therefore, the suit was well within time; that both the Courts below were not legally justified to hold that the suit of the petitioner was barred by time. It was also argued that question of limitation was not validly determined and the mutations which were part of the Revenue record, were not the primary documents, for a title, as according to the learned counsel, the revenue record was not a primary document showing the title but these are maintained under the Land Revenue Act for the purpose of determining the land revenue and at least these had evidentiary value. Next it was argued that the previous statement of PW-1 was not proved in accordance with law and it could not be relied upon by the two Courts below as he was not confronted with the portion of the statement which was used by the two Courts below against the plaintiff/petitioner. In support of his contentions, the petitioner's learned counsel relied on the judgment in the case of Hayat Gul deceased through Motarim Gull vs. Mst. Rahm Bibi (PLJ 1998 S.C. 490), Ghulam Ali vs. Ghulam Sarwar Naqvi (PLD 1990 S.C. 1), Nazir Ahmad vs. Abdullah (1997 SCM R 281), Maqbool Ahmad vs. Government of Pakistan (1991 SCM R 2063) and Mst. Noor Fatima vs. Begum Bibi (1990 SCM R 629).
11.On the other hand, learned counsel for the Respondent No, 1 has argued that it was not proved that the petitioners were the colateral of Sikandar deceased. Secondly, Sikandar deceased was occupancy tenant and after his death in 1946, this right devolved upon his wife Mst. Naiko. After termination of occupancy tenancy through an amendment in the Punjab Tenancy Act, Mst. Naiko paid the price and became absolute owner of the property. She gifted out her property and vide a registered gift-deed dated 8th February 1966, this gift-deed was challenged by Jahandad through a civil suit. The petitioners claimed that Jahandad was the real brother of their father. In the said suit Petitioner No, 1 Muhammad Ashraf has appeared as witness on behalf of Jahandad as PW-2.
After loosing that case another suit was filed by Suba and others again challenging the gift-deed dated 8th of February 1966. This suit was also dismissed. An appeal was preferred by Messers Suba and others against Mst. Naiko and Defendant No,
1. Appeal also failed. All these facts were in the knowledge of the petitioners. That they did not challenge the gift-deed and filed the, suit on 19th of March 1990. Relying on Articles 91 & 120 of the Limitation Act it was argued by the learned counsel for the respondent that a registered gift-deed dated 8th of February 1966 could only be challenged within three years according to Article 91 of the Limitation Act, in any case, if it is taken to be a suit for declaration limitation would be 6 years which obviously expired in the year 1972 and filing the present suit after 24 years would make it manifestly barred by limitation.
12.I have considered the arguments of both the parties and examined the record. Before taking up the question of limitation, I would take up the question whether petitioners are the collaterals of Sikandar and if they are proved as such, whether any estate was available for inheritance to the petitioners. The case set up by the petitioner was that Sikandar son of Ali Bahadar was owner in possession of land measuring 52 kanals 15 marlas and houses situated in revenue estate of village Topi Tehsil and District Rawalpindi. The contesting defendant/respondents denied and pleaded that Sikandar son of Ali Bahadar was merely an occupancy tenant of the land described in the suit.
On his death the occupancy right devolved on Mst. Naiko as his widow. Mst. Naiko deposited compensation in accordance with Punjab Tenancy Act and acquired proprietary rights in respect of said land and became the owner of said land. To prove their case one of the petitioners Muhammad Ashraf appeared as PW-1. He has stated only that when Sikandar died his property devolved on his father and uncle Jahandad and the widow Mst. Naiko. The documentary evidence which was brought on record were Ex. P-1 to Ex. P-17. The relevant documents for purpose of ascertaining the ownership of Sikandar were Mutation No, 519 Ex. P-10, Mutation No, 520 Ex.P-11, copy of Misl-e-Haqiat Ex. P-12, copy of Jamabandi for the year 1946-47 Ex. P13, against copy of Jamabandi for the year 1946-47 Ex. P-14 and copy of Jamabandi for the year 1962-63 Ex. P-15.
Admittedly, Sikandar died in the year 1946 and vide Ex. P-10 Mutations Nos, 519 and 520 were made in the name of Mst. Naiko, his wife, according to the Customary law. Ex. P-12 copy of Misl-e-Haqiat for year 1956 shows Mst. Naiko widow of Sikandar as full owner. Ex. P-13, copy of Jamabandi for the year 1946-47, shows that the land was in possession of Sikandar son of Ali Bahadar as Mauroosi occupant. Ex. D-9, copy of Misl-e-Haqiat of 19051906 shows that Ali Bahadar and Meer Zaman son of Fateh Noor were in possession of the property as Mauroosi. Sikandar was the son of Ali Bahadar.
Therefore, from the evidence on the record it is proved that possession of Sikandar in respect of the suit land was as a occupancy tenant. The right which Mst. Naiko acquired after his death in 1946 was that of an occupancy tenant. Jamabandi for the year 1962-63 Ex. P-15 shows that Mst. Naiko widow of Sikandar was entered as a full owner and Jahandad son of Ali Haider who was stated to be the uncle of petitioners was in possession of property as `Ghair Mauroosi'. As no other evidence was brought on record, therefore, version of the defendants that Sikandar was in occupancy tenant and when the Defendant No, 1 appeared as DW-1 he categorically stated in examination-in-chief that Sikandar had possessed the land as occupancy tenant and died in the year 1946 and after his death the land was mutated in the name of Naiko who in the year 1956 paid the entire compensation to the Government and acquired the ownership. This part of the statement was not challenged in cross-examination. True that through oral testimony ownership is not proved but at the same time in the instant case, the burden was on the plaintiff to prove that Sikandar was absolute owner as pleaded by them, and that Mst. Naiko did not acquire proprietary rights subsequently by making compensation to the Government. No such evidence has been produced by the plaintiff/petitioners. On the contrary, the plea of defendant/respondent that Sikandar was only an occupancy tenant is proved from the evidence mentioned hereinbefore. It is also admitted that Mst. Naiko died in the year 1970 and that if it is taken that she was a limited owner, the succession of last male owner i,e, Sikandar would deem to open in the year 1970 but at that time no property under the occupancy tenancy was available because prior to 1970 occupancy tenancy was converted into an absolute ownership of Mst. Naiko as back as in 1956. Thus, I find that no property for the purpose of inheritance was available to the persons claimed to be the legal heirs of Sikandar as collateral.
13. The next question is whether petitioners were collateral of Sikandar deceased. To prove their contentions, the petitioners brought on record pedigritable Ex. P-4 of year 1860, pedigritable of 1905-1906 Ex. P-5, pedigritable of year 1950-51 Ex. P6, Naqsha Alaf Exh. P-7 and pedigritable 1990- 1991 Ex. P-17. The petitioners claim to be the sons and daughters of Muhammad Khan. All these pedigritables do not help the petitioners because on reading of Ex. P-17, the name of Muhammad Khan is reflected. This pedigritable is of the year 1990-91. It shows that Muhammad Khan was son of Ali Haider. In the main pedigritable which is for the year 1950-51 name of Muhammad Khan is not shown as a legal heir of Ali Haider. Case of the petitioner is that this was an omission. But it is also brought on record that Muhammad Khan, the father of the petitioner filed a suit against Jahandad who inherited the entire property of his father Ali Haider claiming to be the owner of Ali Haider. This suit was dismissed. However, during pendency of appeal when Jahandad had died, a compromise was shown to be affected between widow of Jahandad and Muhammad Khan and the appeal was decided on the basis of a compromise brought on the record. In the said compromise Mst.
Channan Bibi admitted the status of the father of the plaintiff as brother of her deceased husband.
This proves that Muhammad Khan. The predecessor-in-interest of the petitioners was taken as a son of Ali Haider. The fact that Muhammad Khan is proved to be the son of Ali Bahadar, may 'be there, but it is not enough to claim the status of a collateral. Ex. P-5 shows that Ali Bahadar was a son of Fateh Noor. having three brothers namely Ali Gauhar, Meer Zaman and Muhammad Khan. In order to claim the right as a collateral by legal heirs of Ali Haider it was necessary for them to prove on record that Ali Gauhar, Meer Zaman and Muhammad Khan had no successors. In the absence of all this evidence it is not possible to hold that the petitioners are the collaterals of Sikandar deceased.
14. Next comes the question about the limitation. The suit filed by the petitioners was for the cancellation of the documents and also seeking inheritance. The documents cancellation whereof was sought, were principally a registered gift-deed dated 8th of February, 1966 and the subsequent mutations, transfer instruments. Admittedly, a suit for cancellation of an instrument falls within the ambit of Article 91 of the Limitation Act 1908 and the period for such a suit provided is three years computable from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside because known to him. It is clear from Ex. D-5 that Jahandad the uncle of the petitioners filed a suit in 1966 seeking the cancellation of the gift-deed dated 8th of February, 1966 made by Mst. Naiko against the defendant. In the said suit Petitioner No, 1 Muhammad Ashraf appeared as PW-2 on 25th of January 1967. He stated that Sikandar had died in year 1946 when he was of 7 years of age. He also stated that he had no relationship with Sikandar nor he had any kind of relationship with Mst. Naiko. Without going into the merits of the deposition of Petitioner No, 1 it would be sufficient to infer that Petitioner No, 1 had the knowledge about the gift-deed dated 8.2.1966 purported to have been executed by Mst. Naiko in favour of Defendant No,
1. Thus, he was required to file the suit within a period of three years but he chose not to do so till 1990 when he filed the present suit. Another conspicuous fact is that the father of the petitioners, Muhammad Khan and his father during their life time did not challenge the acquisition of right by Mst. Naiko as the owner of the property nor her right to alienate the same through a gift-deed dated 8.2.1966. The petitioners filed the said suit after 24 years of execution of gift and subsequent instrument of transfer. Therefore, the suit of the petitioners is manifestly barred by time. The arguments of the learned counsel that in a suit for inheritance no limitation is applicable, is misconceived. As already held above, that no estate of Sikandar was available for inheritance, therefore, merely describing a suit for inheritance it would not bring the suit within the four corners of limitation if it is barred by time in its essance. As regards the arguments of learned counsel that revenue record was not a record of title. It would suffice to observe that this issue is not involved because the basic instrument which is assailed through the suit is not a part of the revenue record it is a registered gift-deed duly registered under the Registration Act.
15. The up shot of the above discussion is that both the Courts below have rightly decided the issues and the judgment of two Courts below does not call for any interference. The revision petition is without any merit. Resultantly, the same is dismissed.